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Monday, November 21, 2011

We are so used to evaluating an employer’s actions in discrimination cases as to whether they constitute an adverse action, that we forget that the adversity requirement does not necessarily pertain under all local anti-discrimination laws. For example, in 2005, the New York City Human Rights Law was amended by the Local Civil Rights Restoration Act of 2005 N.Y.C. Local Law No. 85 (2005), which provides, now, that discrimination in “any manner” is prohibited by the City human rights law, and thus an adverse employment action is not an element of a prima facie case under the local law. See N.Y. City Admin. Code § 8-107 (2009); Williams v. N.Y.C. Housing Auth., 61 Ad.3d 62, 70, 2009 N.Y. App. Div. LEXIS 433 (1st Dep’t 2009); See also Joseph v. N.Y. City Dep’t of Corrs., 2011 U.S. Dist. LEXIS 51690, 2011 WL 1843162, at *9 (E.D.N.Y. May 13, 2011); and Margherita v. Fed. Express, 2011 U.S. Dist. LEXIS 121249 (E.D.N.Y. Oct. 20, 2011); Prof. Craig Gurian, A Return to Eyes on the Prize: Litigating under the Restored New York City Human Rights Law, 33 Fordham Urb. L. J. 255, 288 (2006).

Friday, November 18, 2011

In Wilkerson v. Federal Express, 2011 U.S. Dist. LEXIS 59708 (D. Md. June 2, 2011), Judge Alexander Williams approved a contractual limitation clause which provided that any claim against Federal Express had to be brought within the earlier of the time prescribed by law or six months. The Court found, as previously the Maryland Court of Special Appeals had in Coll. of Notre Dame of Md., Inc. v. Morabito Consultants, Inc., 752 A.2d 265 (2000), that “there is nothing in the policy or object of such statutes which forbids the parties to an agreement to provide a shorter period, provided the time is not unreasonably short.” The Wilkerson Court adopted the criteria used by the Maryland Court of Special Appeals in assessing the reasonableness of a provision shortening statutes of limitations. The three criteria being:

There is no controlling statute to the contrary

It is reasonable; and

It is not subject to other defenses such as fraud, duress, or misrepresentation.

Morabito, 752 A.2d at 174. The Court found that, were it not for the contractual limitation, the statute of limitations would be three years in the case before it. Nonetheless, the Court found the six-month time period to be reasonable, indicating that the clause was written in bold, capitalized letters; was not hidden in any way; and that there were no apparent statutes preventing such a shortening of the statute of limitations.

The Wilkinson opinion appears to be consistent with the line of authorities about which we previously blogged.

That the employee would not file, join, participate or intervene in a class action;

That arbitration of any claim on a class or collective basis was prohibited;

That all legal disputes, including claims under the FLSA, had to be submitted to binding arbitration before the AAA;

That the employee would be required to pay a filing fee to the AAA only up to the amount required to file a lawsuit and that the employer would pay any difference;

That the employer would pay all of the arbitration fees and costs;

That, to the extent authorized by applicable law, either the employee or the employer could seek an award of attorney’s fees from the other; and

That the Dispute Resolution Agreement was not offered on a take-it-or-leave-it basis, but rather the employee could opt out of the Agreement within 30 days of receipt of the Agreement, by completing an opt-out form attached to the Agreement.

The court found the Agreement to be neither procedurally or substantively unconscionable. The court rejected plaintiff’s argument that the dispute resolution agreement was “buried” in the handbook and that its language and format was confusing such that a reasonable worker could not understand it. The court found the Agreement to begin in a large, bold font; the text to be in a regular font; that there was “a dearth of legalese”; and, while single-spaced, was easily readable. The court stated that “[t]here is nothing hidden or buried about this Agreement, as long as an employee reads the Handbook”. The court further found that it was “written in easily readable type and about as plain as a legal agreement can be.” The court went on to state that “the law does not protect persons who choose not to read documents given to them.” Finally, the court stated unequivocally as follows:

“Nothing in the FLSA precludes an agreement to arbitrate a FLSA claim, even when the arbitration agreement is part of an employee handbook and whether or not the employee signs the agreement or the handbook.”

Wednesday, November 16, 2011

On September 19, 2011, we reported about a First Circuit opinion, authored by retired justice Souter, in EMC Corp. v. Arturi, No. 11-1001, 2011 U.S. App. LEXIS 17834 (1st Cir. Aug. 26, 2011), in which the Court found the non-compete to no longer be enforceable because more than a year had elapsed since plaintiff’s departure from the company and the non-compete was for one year’s duration. In that case, Justice Souter noted that the non-compete could have been more carefully drafted to account for the delays in obtaining enforcement attendant to litigation. Recently, the Second Circuit addressed the same drafting problem in Aladdin Capital Holdings, LLC v. Donoyan, 2011 U.S. App. LEXIS, 19083, 2011 Westlaw 4063012 (2d Cir. Sept. 14, 2011). In Aladdin, the Court stated that the expiration of a restrictive employment covenant renders an employer’s request for injunctive relief moot, as the employer did not include language in the non-compete that provides for an extension of the restrictive covenant during the period of breach, the court was unable to enforce what otherwise might have been an enforceable restrictive covenant. See also the District Court’s opinion authored by Judge Kravitz at 2011 U.S. Dist. LEXIS 61095 (D. Conn. June 8, 2011) and Van Dyck Printing Co. v. DiNicola, 648 A.2d 877 (Conn. 1994) (finding claim for injunctive relief to be moot).

In Muldrow v. Schmidt Baking Co., Inc., 2011 U.S. Dist. LEXIS 70576 (D. Md. June 30, 2011), the Court, in denying the employer’s motion to dismiss, found that the use of the “n” word on one occasion is “extremely serious” and may be sufficient to state a claim of a hostile work environment based on race. The Court relyied on cases such as Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 136 (2d Cir. 2001) (“…a single instance can suffice when it is sufficiently egregious”); Ezell v. Potter, 400 F.3d 1041, 1048 (7th Cir. 2005) (“[I]n the case of racial and ethnic slurs, some words are so outrageous that a single incident might qualify for a hostile environment claim.”); Cerros v. Steel Techs., Inc., 398 F.3d 944, 950-51 (7th Cir. 2005) (“we have recognized before that an unambiguously racial epithet falls on the ‘more severe’ end of the spectrum.”).

In addition, the Court was dealing with conduct by non-employees. Plaintiff was a general helper for the bakery, and thereafter was promoted to route salesman. While at a store, which was a customer of the bakery, the store’s white, female, manager referred to plaintiff, an African American, using the “n” word. The Court found that the employer’s response to harassing conduct of non-employees is evaluated using a negligence standard, finding that an employer can be liable if it took no steps to protect its employees and if it had actual or constructive knowledge of the situation. See EEOC v. Cromer Food Servs., Inc., 2011 U.S. App. LEXIS 4279 (4th Cir. Mar. 3, 2011); See also Galdamez v. Potter, 415 F.3d 1015, 1022 (9th Cir. 2005) (employer can be liable for third parties if it ratifies their actions by failing to act); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 767 (2d Cir. 1998) (employer is generally not liable for non-employee conduct unless employer provided no reasonable avenue for complaint or knew of the harassment but failed to address it).

In Moody v. Arc of Howard Cnty., Inc., 2011 U.S. Dist. LEXIS 73540 (D. Md. July 7, 2011), Judge Bredar sanctioned counsel for the plaintiff under Rule 11 where counsel persisted in contending that individuals are suable under Title VII. In concluding his opinion, the judge had the following to say, all of which should guide all of us during the heat of litigation:

“A license to practice law brings with it substantial responsibilities, and one of those is an obligation of prudence when bringing and pressing a claim. Attorneys are entitled, and sometimes even obligated, to sail into shallow waters as investigation and discovery reveal weaknesses in the factual and legal theories of a case. However, once the ship has not just bumped a shoal or two, but instead has collided with rocks and begun taking water, the voyage is over and counsel is required to drop his sails. A reasonable and prudent attorney would have known and accepted that his claims were finished — that his voyage had ended — upon reading and reflecting upon the Rule 11 notice filed on February 22, 2011. It was clear then that the plaintiffs had no case, legally or factually. Under generous rules of procedure, safe harbor remained available to Mr. Ostendorf even after this grounding, see Fed. R. Civ. P. 11(c)(2), and had he elected that course and dismissed his claims before March 15, 2011, he would have avoided the wreck that has now ensued.” Moody, 2011 U.S. Dist. LEXIS 73540 at *27-*28.

Tuesday, November 15, 2011

In Carder v. Continental Airlines, 636 F.3d 172 (5th Cir. 2011), petition for cert. denied 181 L. Ed. 2d 235 (Oct. 3, 2011), the Fifth Circuit held that USERRA does not create a cause of action for hostile work environment. The Court’s decision, authored by Circuit Judge W. Eugene Davis, relied on the current language of USERRA, which does not contain the phrase “the terms, conditions, or privileges of employment” found in Title VII, which the Supreme Court heavily relied upon to find a cause of action for harassment. Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 63-66 (1986). In contrast, USERRA, in current § 4311(a) states that a protected person “shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that [protected status].” (emphasis supplied).

Presumably, both houses will agree shortly on legislation containing a Carder-override. Given that it is characterized as a clarification, and thus potentially retroactive, employers should proceed henceforth, if they have not already, to conduct their business as though the law prohibits harassment of those protected by the Uniformed Services Employment and Reemployment Rights Act.

On October 12, 2011, the U.S. House of Representatives passed H.R. 2433, the “Veteran Opportunity to Work Act”, which contains § 401, which would effectively overrule the Carder decision. H.R. 2433, 112th Cong. (2011). Section 251 states as follows:

“Section 4303(2) of title 38, United States Code, is amended by inserting ‘the terms, conditions, or privileges of employment, including’ after ‘means’.”

The House indicated that the legislation is intended to “clarify” USERRA. Thus, it is already being argued that the amendment would be retroactive. See H.R. 2433, Section 1 “Short Title; Table of Contents”.

On November 11, 2011, the Senate passed similar legislation in the form of section 251 of the VOW to Hire Heroes Act, S. 951, which was combined with H.R. 2433 and inserted as an amendment replacing the entirety of H.R. 674. See S. Res. 951, 112th Cong. (2011); H.R. 674, 112th Cong. (2011).

Monday, November 14, 2011

In Lester v. Allied Concrete Co., Nos. CL08-150, CL09-223 (Va. Cir. Ct. Oct. 21, 2011), Judge Edward Hogshire of the Circuit Court for the City of Charlottesville, Virginia issued an order which reduced by fifty-percent a $10.6 million jury verdict and imposed $722,000 in sanctions.$542,000 of the sanctions were imposed on counsel for plaintiff-Lester, and the remaining $180,000 on plaintiff Lester himself. The basis for the court’s sanction was an “extensive pattern of deceptive and obstructionist conduct of Murray and Lester…”In March of 2009 plaintiff’s counsel received a discovery request for the contents of plaintiff’s Facebook account.At that time, plaintiff’s Facebook account contained a photo of plaintiff wearing a “I [heart] Hot Moms” t-shirt and holding a beer can with other young adults.According to later deposition testimony, plaintiff’s counsel instructed a paralegal to tell plaintiff to “clean up” his Facebook page because “we don’t want blowups of this stuff at trial.” Thereafter, plaintiff’s counsel allegedly came up with a scheme to take down or deactivate plaintiff’s Facebook account so that he could respond to defendant’s discovery request by stating that plaintiff had no Facebook page on the date the discovery was signed.Allegedly, when defense counsel filed a motion to compel, plaintiff’s counsel instructed plaintiff to reactivate the account. Plaintiff denied deactivating the account during a later deposition.Plaintiff’s counsel was also accused of withholding an e-mail from the paralegal instructing plaintiff to “clean up” his Facebook page.Finally, plaintiff’s counsel allegedly claimed, falsely, after the trial, that the failure to produce the e-mail was the paralegal’s mistake.

In addition to the $542,000 sanction imposed on plaintiff’s counsel, the judge referred the matter to the Virginia state bar.

Lester v. Allied Concrete Co., 80 Va. Cir. 454 (Va. Cir. Ct. 2010) (Court held that plaintiff’s counsel violated Rule 3:3(a) of the Virginia Rules of Professional Conduct by when he alleged that defendant had “hacked into” plaintiff’s Facebook account based on no inquiry into the relevant facts “beyond the bare, unsubstantiated assertions of his client.”)

Friday, November 11, 2011

The Fifth and Eighth Circuits have concluded that public officials can be sued in their individual capacities under the FMLA. See Modica v. Taylor, 465 F.3d 174, 184-87 (5th Cir. 2006); Darby v. Bratch, 287 F.3d 673, 681 (8th Cir. 2002). In contrast, the Sixth and Eleventh Circuits have held that FMLA suits against individual public officers are not cognizable. See Mitchell v. Chapman, 343 F.3d 811, 825-33 (6th Cir. 2003); Wascura v. Carver, 169 F.3d 683, 685-87 (11th Cir. 1999). The Fourth Circuit has not addressed this issue, and the district courts within the Fourth Circuit have reached contrary conclusions on the subject, with, for example, one judge on the Maryland federal district court bench allowing such claims (Knussman v. Maryland, 935 F. Supp. 659, 664 (D. Md. 1996) (Black, J.), and another judge on the same bench rejecting such a claim (Sadowski v. U.S. Postal Serv., 643 F. Supp. .2d 749, 753 (D. Md. 2009) (Bennett, J.) (recognizing the opinion in Sadowski is “at variance” with the decision in Knussman)). Recently, Judge Brinkema of the Eastern District of Virginia held, in Weth v. O’Leary, 2011 U.S. Dist. LEXIS 74432 (E.D. Va. July 11, 2011) held that public officials who acted directly or indirectly in the interests of the employer can be personally liable in FMLA cases.

In Lopez v. Asmar’s Mediterranean Food, Inc., 2011 U.S. Dist. LEXIS 2262 (E.D. Va. Jan. 10, 2011), Judge Cacheris in a FLSA case where defendant had interviewed all of the employees whom plaintiff had identified as “similarly situated”, and had submitted affidavits from each of those employees contradicting plaintiff’s assertion that she worked overtime, denied summary judgment to the employer, stating that “because these affidavits are of Defendant’s current employees, they may be subject to bias.” Lopez, 2011 U.S. Dist. LEXIS 2262 at *6. The court stated that such current employee affidavits must be discounted, as discovery is not yet complete, and plaintiff has not had the opportunity to depose these witnesses. See, e.g., Francis v. A & E Stores, Inc., No. 06 Civ. 1638, 2008 U.S. Dist. LEXIS 83369, 2008 WL 4619858, at *3 (S.D.N.Y. Oct. 16, 2008) (discounting affidavits of defendant's employees); Vaughan v. Mrtg. Source LLC, No. CV 08-4737, 2010 U.S. Dist. LEXIS 36615, 2010 WL 1528521, at *7 (E.D.N.Y. April 14, 2010) (“[C]ourts may assign the weight they think appropriate to affidavits from current employees because of the risk of bias and coercion.”)(citation and internal quotation marks omitted); Damassia v. Duane Reade, Inc., No. 04 Civ. 8819, 2006 U.S. Dist. LEXIS 73090, 2006 WL 2853971, at *4 (S.D.N.Y. Oct. 5, 2006) (declining to consider affidavits where plaintiffs had not yet had the opportunity to depose affiants); Morden v. T-Mobile USA, Inc., No. C05-2112, 2006 U.S. Dist. LEXIS 68696, 2006 WL 2620320, at *3 (W.D. Wash. Sept. 12, 2006) (discounting current employees’ declarations “because of the risk of bias and coercion inherent in that testimony”)

Monday, November 7, 2011

I.Legal Background

The U.K. Equal Pay Act of 1970 required equal pay for work of equal value unless “the employer proves that the variation is genuinely due to a material factor which is not the difference of sex and that factor… must be a material difference between the woman’s case and the man’s…” Equal Pay Act, 1970, c. 41, § 1(2)-(3). The EPA was repealed, and largely restated, by the Equality Act of 2010, and while section 69 effectively overrules Armstrong (discussed below), by requiring objective justification in all cases of indirect discrimination in pay, the issues discussed herein are very relevant to the many cases still governed by the historical Equal Pay Act.

The European Court of Justice, in Case C-127/92, Enderby v. Frenchay Health Auth., 1993 E.C.R. I-05535, held that the Equal Pay provision of the Treaty of Rome’s[1] Article 141 (formerly Article 119) and the Equal Pay Directive,[2] prohibited disparities in pay between equivalent-value jobs where one job is performed primarily by women and the other by men. Significantly, this prohibition applies even when those differences are arrived at by collective bargaining processes which are, in themselves, non-discriminatory. Enderby also suggested that when statistics showed that predominantly female groups were paid less than predominantly male groups for same-value work, the employer must provide objective justification for the difference in order to escape liability.

The Enderby decision led to a flurry of activity in the U.K. as courts attempted to determine how it affected the Equal Pay Act. The most notable of the decisions during this period was Armstrong v. Newcastle Upon Tyne NHS Hosp. Trust, [2006] IRLR 124, [2005] EWCA (Civ) 1608. In Armstrong, Buston LJ added a “sophistication” to the holding in Enderby, stating: “if the employer proves the absence of sex discrimination [it] is not obliged to justify the pay disparity.”

Recently, it appeared that the U.K.’s new Supreme Court would have an opportunity to resolve some of the troubling questions regarding indirect discrimination in the case of Gibson & Ors. v. Sheffield City Council,[2010] ICR 708, [2010] EWCA (Civ) 63. However, Gibson settled shortly before a three-day hearing was scheduled before the Supreme Court. In light of this development, it appears that questions regarding indirect discrimination will have to wait for another opportunity to gain much-needed clarity. This article summarizes Gibson, and the questions which it raised.

II.Facts of Gibson

SheffieldCity Council employs individuals as “carers”, cleaners, and gardeners. Carers and cleaners are predominantly female, while gardeners and street cleaners are predominantly male. In the hearings before Judge Trayler of the Employment Tribunal in 2007 and 2008 the parties stipulated that individuals in these jobs do work of equal value. Crosby & Ors. v. Sheffield City Council, No. 2800460/07 & others, Appx. B. (the “Gibson Tribunal”). Prior to Gibson, street cleaners and gardeners were paid 33.3% and 38% respectively more than carers and predominantly female cleaners, despite the fact that all positions afforded the same “base pay.” This disparity resulted from a “productivity bonus” that street cleaners and gardeners received in addition to their base pay, but which was not available to carers or predominantly female cleaners. The predominantly female cleaners, led by Ms. Crosby, prevailed in Judge Trayler’s decision in Crosby & Ors. v. Sheffield City Council in 2008, and the case was subsequently re-captioned Gibson & Ors. v. Sheffield City Council. The following discussion will accordingly focus on matters related to the pay of carers.

III.Decisions of the Employment Tribunal

As an initial matter, Judge Trayler found that there was no evidence that bonuses were denied to carers on account of sex, stating:

“…we believe the reason why the male comparators received a bonus is in return for productivity in relation to outcomes which are measurable. This productivity is achieved by more flexible efficient working which has been kept up to date by the various pressures on the part of the respondent employing the comparators. It is a genuine scheme. It is material in that it is there to provide efficiency of production. It is unrelated to the gender of the recipients.”[3]

Relying on the reasoning of the Court of Appeal in Armstrong, Judge Trayler then found that this conclusion ended the inquiry, holding:

[t]he reason [for the pay differential] is the need to provide payments for increased productivity which [respondent] cannot and does not need to make to these claimants.

This is a reason which is not the gender of the recipients of the bonus or the claimants. In our view, the respondent has proved that the reason is not the reason of the sex of the group of workers.[4]

The carers appealed Judge Trayler’s decision to the Employment Appeals Tribunal, which dismissed their appeal. The Employment Appeals Tribunal agreed with Judge Trayler that, since the Sheffield City Council had “negatived” the taint of sex discrimination, it was not required to objectively justify the pay differential between carers on the one hand, and street cleaners and gardeners on the other.[5]

IV.Decision of the Court of Appeal

The carers were granted leave to appeal to the Court of Appeal, where they raised three issues:

1.Where jobs performed predominantly by women are equivalent to jobs performed predominantly by men, but the predominantly female jobs are compensated at a lower level, does this, of itself, amount to prima facie sex discrimination which requires the employer to objectively justify the pay differential to avoid liability, or may the employer also avoid liability by proving that the difference in pay is not sexually discriminatory?

2.If the employer is entitled to prove the absence of discrimination, is it enough to establish a gender neutral explanation for the higher payments to the male employees or is something more required?

3.On either analysis, on the ET’s findings, had the Council proved sufficient to avoid the requirement to provide objective justification?

The parties’ arguments on appeal centered largely on the validity and applicability of Armstrong, both as a general matter and with regard to the specific facts of the case. Appellants argued that the Armstrong “sophistication” which allowed an employer to prevail upon showing the absence of sex discrimination ran contrary to Enderby and several other decisions of the Court of Appeal. Appellee contended that Armstrong was rightly decided and binding on the Court of Appeal.

On February 10, 2010, The Court of Appeal attempted to split the baby by declaring that Armstrong was consistent with Enderby but refusing to apply it on the specific facts presented in Gibson. The Court of Appeal unanimously concluded that the Employment Tribunal and Employment Appeals Tribunal had erred in finding that the reason for the differential treatment between claimants and comparators was free from sex discrimination and remanded the case to the Employment Tribunal to determine whether the difference in pay could be objectively justified. In so doing, the majority held that Armstrong had been correctly decided and that it was open to an employer to establish that a difference in pay was not discriminatory, notwithstanding statistics which show an adverse gender impact. Lord Judge Pill, however, noted that it was difficult to reconcile Armstrong with Enderby as well as the second paragraph of Directive 97/80/EC,[6] though he concluded only that Armstrong was inapplicable “given the clear and compelling statistics.”

The City Council was granted permission to appeal to the Supreme Court of the United Kingdom, and a three day hearing was scheduled before the Supreme Court on both the council’s appeal and the workers’ cross-appeal.

V.Unresolved Questions

The central issue that remains for future resolution is whether, once so-called “indirect” sex discrimination is established by showing that a group predominantly composed of women is placed at a disadvantage as compared to a group predominantly composed of men, the employer can escape liability by showing that the pay difference resulted from an ostensibly gender-neutral policy, or whether the employer must show that the pay difference is “objectively justified” as serving a legitimate purpose.

The decision in Gibson also did little to reconcile the inherent tension between Enderby and Armstrong. With little to guide lower courts as to when Armstrong ought to be applied, clarity in the many cases based on the historical Equal Pay Act must await future pronouncements by the Courts.

* Mr. Fitzpatrick would like to acknowledge and thank Mr. Ben Patrick, in-house Solicitor with the trade union UNISON, who represented the carers in Gibson and who provided assistance and insight in the drafting of this article[1] Treaty Establishing the European Economic Community, 25 March 1957, 298 U.N.T.S. 3.

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About Me

Robert Brian Fitzpatrick is the principal in the law firm of Robert B. Fitzpatrick PLLC in Washington, D.C. where he represents clients in employment law and employee benefits matters. Mr. Fitzpatrick has concentrated his practice in employment law disputes for over forty years. He has represented clients in individual and class actions. He has represented clients in employment discrimination, workplace harassment, retaliation, age discrimination, FMLA, ADA, whistleblower, wrongful termination, non-compete, trade secrets, Computer Fraud and Abuse Act, and wage and hour claims among others. He counsels numerous executive clients regarding employment agreements and compensation issues. He has negotiated literally thousands of severance agreements. He has represented clients in practically every industry and profession, including government employees, employees in the hospitality industry, the high tech/computer, government contractors, transportation, entertainment, sports, financial services, trade associations, and academia.

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Note: Robert B. Fitzpatrick makes this blog available for educational purposes only. None of the content on this blog constitutes legal advice. All postings should be considered general statements of the law, not legal advice specific to your situation. Your use of the site or contact with me does not create an attorney-client relationship.

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